Opinion 93-76

September 14, 1993

NOTE: This opinion involves a case that "originated" in the judge's court, thereby implicating Judiciary Law §16. See, e.g.,  2012 Ann Rep of NY Commn on Jud Conduct, at 173-84; 2010 Ann Rep of NY Commn on Jud Conduct, at 67; 2003 Ann Rep of NY Commn on Jud Conduct, at 142; 1988 Ann Rep of NY Commn on Jud Conduct, at 133-43, and at 159-64.

For matters that do not originate the judge's own court, Opinion 08-132 approves a procedure by which a court clerk assigns all matters of an attorney who is also part-time judge to a full-time judge at the outset, so that he/she never appears before another lawyer-judge. (The general rule remains, however, that matters already assigned to a lawyer-judge may not be transferred solely for the purpose of permitting another lawyer-judge or his/her partners to continue to appear as the attorney in the matter.)

Digest:         A part-time acting judge, who is permitted to practice law, may not appear on behalf of a client in the court in which the part-time judge presides, even though the appearance is simply to move to transfer the case.

Rules:          22 NYCRR 100.5(f), Judiciary Law §16; See also, Opinion 90-191, Vol. VI

Opinion:

         A part-time acting judge, who in private practice is involved in the representation of a local businessman in an ongoing dispute with another local businessman, has been advised by the opposing attorney that he intends to commence an action in city court where the part-time acting judge sits. The judge inquires whether it is permissible to appear before the other city court judge, who also holds part-time judicial office, and request that the matter be transferred to a local court where the inquiring judge is allowed to practice. The judge states that if it is not permitted, the client will be harmed by reason of having to obtain new counsel at additional expense because the new counsel would be unfamiliar with the matter.

         Section 100.5(f) of the Rules of the Chief Administrator of the Courts applies to part-time judges whether they are regular or acting judges. That section prohibits an attorney-judge from practicing in the court in which he or she presides. Thus, the inquiring judge is prohibited from appearing in his or her own city court on behalf of a client. Finally, this Committee has previously opined that an attorney-judge may not transfer a case to a lay judge simply to circumvent the no-practice rule in §100.5(f) (see, Opinion 90-191, Vol. VI) .

         In addition, the attorney-judge’s handling of this matter would violate the prohibition of §16 of the Judiciary Law, which prohibits an attorney-judge from appearing in any case that originated in a court of which the judge is a member.

         See also, Matter of Bruhn (1987), before the Commission on Judicial Conduct.